[Confidential treatment is being sought for certain portions of this Exhibit, as
indicated by a "[*]" symbol and footnoted as "omitted pursuant to Rule 406."
Such omitted portions have been filed with the Securities and Exchange
Commission.]
EXHIBIT 10.10
Agreement Number:
AGREEMENT
between
FISERV SOLUTIONS, INC.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
and
Pacific Mercantile Bank
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Date: September 15, 1998
Fiserv
AGREEMENT dated as of September 15, 1998 ("Agreement") between FISERV SOLUTIONS,
INC., a Wisconsin corporation ("Fiserv"), and Pacific Mercantile Bank, a
California corporation ("Client").
===============================================================================
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be five (5) years and,
----
unless written notice of non-renewal is provided by either party at least 180
days prior to expiration of the initial term or any renewal term, this Agreement
shall automatically renew for a renewal term of five (5) years. This Agreement
shall commence on the earliest of the day Fiserv Services (as defined below) are
first used by Client or January 31, 1999.
2. Services. (a) Services Generally. Fiserv, itself and through its
-------- ------------------
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
services ("Services") and products ("Products") (collectively, "Fiserv
Services") described in the attached Exhibits:
Exhibit A - Account Processing Services
Exhibit L - Material Purchased Through Fiserv
Exhibit M - Software Products
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to
time by incorporating an appropriate Exhibit to this Agreement.
(b) Conversion Services. Fiserv will convert Client's existing applicable
-------------------
data and/or information to the Fiserv Services. Those activities designed to
transfer the processing from Client's present servicer to the Fiserv Services
are referred to as "Conversion Services". Client agrees to cooperate with
Fiserv in connection with Fiserv's provision of Conversion Services and to
provide all necessary information and assistance to facilitate the conversion.
Client is responsible for all out-of-pocket expenses associated with the
Conversion Services. Fiserv will provide Conversion Services as required in
connection with Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids, user
-----------------
manuals, and other documentation for Client's use as Fiserv finds necessary to
enable Client personnel to become familiar with Fiserv Services. If requested
by Client, classroom training in the use and operation of Fiserv Services will
be provided at a training facility designated by Fiserv. All such training aids
and manuals remain Fiserv's property.
3. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv:
------------------------ -------
(i) estimated fees for Fiserv Services for the following month as specified
in the Exhibits;
(ii) estimated out-of-pocket charges for the following month payable by
Fiserv for the account of Client; and
(iii) estimated Taxes (as defined below) thereon (collectively, "Estimated
Fees").
Fiserv shall timely reconcile Estimated Fees paid by Client for the Fiserv
Services for the month and the fees and charges actually due Fiserv based on
Client's actual use of Fiserv Services for such month. Fiserv shall either
issue a credit to Client or provide Client with an invoice for any additional
fees or other charges owed. Fiserv may change the amount of Estimated Fees
billed to reflect appropriate changes in actual use of Fiserv Services.
Estimated Fees may be increased from time to time as set forth in the Exhibits.
Upon notification to and acceptance by Client, Fiserv may increase its fees in
excess of amounts listed in the Exhibits in the event that Fiserv implements
major system enhancements to comply with changes in law, government regulation,
or industry practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as telephone,
------------------
microfiche, courier, and other charges incurred by Fiserv for goods or services
obtained by Fiserv on Client's behalf shall be billed to Client at cost plus the
applicable Fiserv administrative fee. Such out-of-pocket expenses may be
changed from time to time upon notification of a fee change from a
vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise, value
-----
added, and other taxes and duties however designated that are levied by any
taxing authority relating to the Fiserv Services ("Taxes"). In no event shall
"Taxes" include taxes based upon the net income of Fiserv.
(d) Exclusions. The Estimated Fees do not include, and Client shall be
----------
responsible for, furnishing transportation or transmission of information
between Fiserv's service center(s), Client's site(s), and any applicable
clearing house, regulatory agency, or Federal Reserve Bank.
(e) Payment Terms. Estimated Fees are due and payable monthly upon receipt
-------------
of invoice. Client shall pay Fiserv through the Automated Clearing House. In
the event any amounts due remain unpaid beyond the 30th day after payment is
due, Client shall pay a late charge of 1.5% per month. Client agrees that it
shall neither make nor assert any right of deduction or set-off from Estimated
Fees on invoices submitted by Fiserv for Fiserv Services.
4. Access to Fiserv Services. (a) Procedures. Client agrees to comply with
------------------------- ----------
applicable regulatory requirements and procedures for use of Services
established by Fiserv.
(b) Changes. Fiserv continually reviews and modifies Fiserv systems used in
-------
the delivery of Services (the "Fiserv System") to improve service and comply
with government regulations, if any, applicable to the data and information
utilized in providing Services. Fiserv reserves the right to make changes in
Services, including but not limited to operating procedures, type of equipment
or software resident at, and the location of Fiserv's service center(s). Fiserv
will notify Client of any material change that affects Client's normal operating
procedures, reporting, or service costs prior to implementation of such change.
(c) Communications Lines. Fiserv shall order the installation of appropriate
--------------------
communication lines and equipment to facilitate Client's access to Services.
Client understands and agrees to pay charges relating to the installation and
use of such lines and equipment as set forth in the Exhibits.
(d) Terminals and Related Equipment. Client shall obtain necessary and
-------------------------------
sufficient terminals and other equipment, approved by Fiserv and compatible with
the Fiserv System, to transmit and receive data and information between Client's
location(s), Fiserv's service center(s), and/or other necessary location(s).
Fiserv and Client may mutually agree to change the type(s) of terminal and
equipment used by Client.
5. Client Obligations. (a) Input. Client shall be solely responsible for
------------------ -----
the input, transmission, or delivery to and from Fiserv of all information and
data required by Fiserv to perform Services unless Client has retained Fiserv to
handle such responsibilities, as specifically set forth in the Exhibits. The
information and data shall be provided in a format and manner approved by
Fiserv. Client will provide at its own expense or procure from Fiserv all
equipment, computer software, communication lines, and interface devices
required to access the Fiserv System. If Client has elected to provide such
items itself, Fiserv shall provide Client with a list of compatible equipment
and software; Client agrees to pay Fiserv's standard fee for recertification of
the Fiserv System resulting therefrom.
(b) Client Personnel. Client shall designate appropriate Client personnel
----------------
for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall cooperate with Fiserv personnel in their performance of
Services, including Conversion Services.
(c) Use of Fiserv System. Client shall (i) comply with any operating
--------------------
instructions on the use of the Fiserv System provided by Fiserv; (ii) review all
reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Client's Systems. Client shall be responsible for ensuring that its
----------------
systems are Year 2000 compliant and capable of passing and/or accepting date
formats from and/or to the Fiserv System.
6. Ownership and Confidentiality. (a) Definition.
----------------------------- ----------
(i) Client Information. "Client Information" means: (A) confidential plans,
------------------
customer lists, information, and other proprietary material of Client that is
marked with a restrictive legend, or if not so marked with such legend or is
disclosed orally, is identified as confidential at the time of disclosure
(and written confirmation thereof is promptly provided to Fiserv); and (B)
any information and data concerning the business and financial records of
Client's customers prepared by or for Fiserv, or used in any way by Fiserv in
connection with the provision of Fiserv Services (whether or not any such
information is marked with a restrictive legend).
(ii) Fiserv Information. "Fiserv Information" means: (A) confidential plans,
------------------
information, research, development, trade secrets, business affairs
(including that of any Fiserv client, supplier, or affiliate), and other
proprietary material of Fiserv that is marked with a restrictive legend, or
if not so marked with such legend or is disclosed orally, is identified as
confidential at the time of disclosure (and written confirmation thereof is
promptly provided to Client); and (B) Fiserv's proprietary computer programs,
including custom software modifications, software documentation and training
aids, and all data, code, techniques, algorithms, methods, logic,
architecture, and designs embodied or incorporated therein (whether or not
any such information is marked with a restrictive legend).
(iii) Information. "Information" means Client Information and Fiserv
-----------
Information. No obligation of confidentiality applies to any Information
that the receiving party ("Recipient") (A) already possesses without
obligation of confidentiality; (B) develops independently; or (C) rightfully
receives without obligation of confidentiality from a third party. No
obligation of confidentiality applies to any Information that is, or becomes,
publicly available without breach of this Agreement.
(b) Obligations. Recipient agrees to hold as confidential all Information it
-----------
receives from the disclosing party ("Discloser"). All Information shall remain
the property of Discloser or its suppliers and licensors. Information will be
returned to Discloser at the termination or expiration of this Agreement.
Recipient will use the same care and discretion to avoid disclosure of
Information as it uses with its own similar information that it does not wish
disclosed, but in no event less than a reasonable standard of care. Recipient
may use Information for any purpose that does not violate such obligation of
confidentiality. Recipient may disclose Information to (i) employees and
employees of affiliates who have a need to know; and (ii) any other party with
Discloser's written consent. Before disclosure to any of the above parties,
Recipient will have a written agreement with such party sufficient to require
that party to treat Information in accordance with this Agreement. Recipient
may disclose Information to the extent required by law. However, Recipient
agrees to give Discloser prompt notice so that it may seek a protective order.
The provisions of this sub-section survive any termination or expiration of this
Agreement.
(c) Residuals. Nothing contained in this Agreement shall restrict Recipient
---------
from the use of any ideas, concepts, know-how, or techniques contained in
Information that are related to Recipient's business activities ("Residuals"),
provided that in so doing, Recipient does not breach its obligations under this
Section. However, this does not give Recipient the right to disclose the
Residuals except as set forth elsewhere in this Agreement.
(d) Fiserv System. The Fiserv System contains information and computer
-------------
software that are proprietary and confidential information of Fiserv, its
suppliers, and licensors. Client agrees not to attempt to circumvent the
devices employed by Fiserv to prevent unauthorized access to the Fiserv System,
including, but not limited to, alterations, decompiling, disassembling,
modifications, and reverse engineering thereof.
(e) Confidentiality of this Agreement. Fiserv and Client agree to keep
---------------------------------
confidential the prices, terms and conditions of this Agreement, without
disclosure to third parties.
7. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
------------------------------------------------------- ------
Files. Records maintained and produced for Client ("Client Files") may be
-----
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports, summaries, or
information contained in or derived from the data or information in Fiserv's
possession relating to Client when formally requested to do so by an authorized
regulatory or government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply with
---------------------------------------
applicable regulatory and legal requirements, including without limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies of the
termination of this Agreement or any material changes in Services;
(iii) retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity Bond
required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business interruption
insurance coverage for loss of records from fire, disaster, or other causes,
and taking such precautions regarding the same, as may be required by
regulatory authorities.
8. Warranties. (a) Fiserv Warranties. Fiserv represents and warrants that:
---------- -----------------
(i)(A) Services will conform to the specifications set forth in the Exhibits;
(B) Fiserv will perform Client's work accurately provided that Client
supplies accurate data and information, and follows the procedures described
in all Fiserv documentation, notices, and advices; (C) Fiserv personnel will
exercise due care in provision of Services; (D) the Fiserv System will comply
in all material respects with all applicable Federal and State regulations
governing Services; and (E) the Fiserv System is or will be Year 2000
compliant. In the event of an error or other default caused by Fiserv
personnel, systems, or equipment, Fiserv shall correct the data or
information and/or reprocess the affected item or report at no additional
cost to Client. Client agrees to supply Fiserv with a written request for
correction of the error within 7
days after Client's receipt of the work containing the error. Work
reprocessed due to errors in data supplied by Client, on Client's behalf by a
third party, or by Client's failure to follow procedures set forth by Fiserv
shall be billed to Client at Fiserv's then current time and material rates;
and
(ii) it owns or has a license to furnish all equipment or software comprising
the Fiserv System. Fiserv shall indemnify Client and hold it harmless
against any claim or action that alleges that the Fiserv System use infringes
a United States patent, copyright, or other proprietary right of a third
party. Client agrees to notify Fiserv promptly of any such claim and grants
Fiserv the sole right to control the defense and disposition of all such
claims. Client shall provide Fiserv with reasonable cooperation and
assistance in the defense of any such claim.
THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL
LIABILITIES OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
-----------------
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client shall indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (X) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (Y) any and all claims by third parties through
Client arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause (Y) hereof shall not
--------
preclude Client's recovery of direct damages pursuant to the terms and subject
to the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
----------------------- -------
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV SERVICES, OR FISERV'S
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2
YEARS AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR ANY AND ALL
CAUSES OF ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY
CLIENT TO FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE [*] PERIOD
PRECEDING THE DATE THE CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR A
DEFAULT RELATING TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO [*].
(b) Lost Records. If Client's records or other data submitted for processing
------------
are lost or damaged as a result of any failure by Fiserv, its employees, or
agents to exercise reasonable care to prevent such loss or damage, Fiserv's
liability on account of such loss or damages shall not exceed the reasonable
cost of reproducing such records or data from exact duplicates thereof in
Client's possession.
10. Disaster Recovery. (a) General. Fiserv maintains a disaster recovery
----------------- -------
plan ("Disaster Recovery Plan") for each Service. A "Disaster" shall mean any
unplanned interruption of the operations of or inaccessibility to Fiserv's
service center in which Fiserv, using reasonable judgment, requires relocation
of processing to a recovery location. Fiserv shall notify Client as soon as
possible after Fiserv deems a service outage to be a Disaster. Fiserv shall
move the processing of Client's standard services to a recovery location as
expeditiously as possible and shall coordinate the cut-over to back-up
telecommunication facilities with the appropriate carriers. Client shall
maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv in implementing
the switchover to the recovery location. During a Disaster, optional or on-
request services shall be provided by Fiserv only to the extent adequate
capacity exists at the recovery location and only after stabilizing the
provision of base services.
(b) Communications. Fiserv shall work with Client to establish a plan for
--------------
alternative communications in the event of a Disaster.
(c) Disaster Recovery Test. Fiserv shall test the Disaster Recovery Plan
----------------------
annually. Client agrees to participate in and assist Fiserv with such test, if
requested by Fiserv. Upon Client request, test results will be made available to
Client's management, regulators, auditors, and insurance underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to allow
------------
Client's development of a disaster recovery plan that operates in concert with
the Disaster Recovery Plan.
(e) No Warranty. Client understands and agrees that the Disaster Recovery
-----------
Plan is designed to minimize, but not eliminate, risks associated with a
Disaster affecting Fiserv's service center(s). Fiserv does not warrant that
Fiserv Services will be uninterrupted or error free in the event of a Disaster;
no
* Omitted pursuant to Rule 406.
performance standards shall be applicable for the duration of a Disaster. Client
maintains responsibility for adopting a disaster recovery plan relating to
disasters affecting Client's facilities and for securing business interruption
insurance or other insurance necessary for Client's protection.
11. Termination. (a) Material Breach. Except as provided elsewhere in this
----------- ---------------
Section 11, either party may terminate this Agreement in the event of a material
breach by the other party not cured within 90 days following written notice
stating, with particularity and in reasonable detail, the nature of the claimed
breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client 30
--------------
days after due, or Client deconverts any data or information from the Fiserv
System without prior written consent of Fiserv, Fiserv, at its sole option, may
terminate this Agreement and/or Client's access to and use of Fiserv Services.
Any invoice submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within 15 days of the invoice date specifying the
nature of the disagreement.
(c) Remedies. Remedies contained in this Section 11 are cumulative and are
--------
in addition to the other rights and remedies available to Fiserv under this
Agreement, by law or otherwise.
(d) Defaults. If Client:
--------
(i) defaults in the payment of any sum of money due; or breaches this
Agreement in any material respect or otherwise defaults in any material
respect in the performance of any of its obligations and Client fails to cure
such default or breach within thirty (30) days after receipt of a written
notice thereof from Fiserv or, if the default or breach is not susceptible of
cure within such 30-day period, then only if Client fails to commence efforts
to effectuate a cure thereof within such 30-day period or fails to continue
to pursue such cure diligently thereafter; or
(ii) commits an act of bankruptcy or becomes the subject of any proceeding
under the Bankruptcy Code or becomes insolvent or if any substantial part of
Client's property becomes subject to any levy, seizure, assignment,
application, or sale for or by any creditor or governmental agency;
then, in any such event, Fiserv may, upon written notice, terminate this
Agreement and be entitled to recover from Client as liquidated damages an amount
equal to [*]. Client agrees to reimburse Fiserv for any expenses Fiserv may
incur, including reasonable attorneys' fees, in taking any of the foregoing
actions.
(e) Convenience. Client may terminate this Agreement during any term by
-----------
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by [*] books on the date of termination. Client
understands and agrees that Fiserv losses incurred as a result of early
termination of the Agreement would be difficult or impossible to calculate as of
the effective date of termination since they will vary based on, among other
things, the number of clients using the Fiserv System on the date the Agreement
terminates. Accordingly, the amount set forth in the first sentence of this
subsection represents Client's agreement to pay and Fiserv's agreement to accept
as liquidated damages (and not as a penalty) such amount for any such Client
termination.
(f) Merger. In the event of a merger between Client and another organization
------
in which Client is not the surviving organization and where the other
organization was not previously a user of Fiserv services similar to the
Services, Fiserv will allow an early termination of this Agreement upon the
following terms and conditions:
(i) written notice must be given 3 months in advance, specifying the
termination date;
(ii) Fiserv may specify a deconversion date based on its previous commitments
and work loads; and
(iii) Fiserv may charge a termination fee in accordance with subsection (e)
above.
(g) Return of Data Files. Upon expiration or termination of this Agreement,
--------------------
Fiserv shall furnish to Client such copies of Client Files as Client may request
in Fiserv's standard machine readable format along with such information and
assistance as is reasonable and customary to enable Client to deconvert from the
Fiserv System, provided, however, that Client consents and agrees and authorizes
-------- -------
Fiserv to retain Client Files until (i) Fiserv is paid in full for (A) all
Services provided through the date such Client Files are returned to Client; and
(B) any and all other amounts that are due or will become due under this
Agreement; (ii) Fiserv is paid its then standard rates for the services
necessary to return such Client Files; (iii) if this Agreement is being
terminated, Fiserv is paid any applicable termination fee pursuant to subsection
(d), (e), or (f) above; and (iv) Client has returned to Fiserv all Fiserv
Information. Unless directed by Client in writing to the contrary, Fiserv shall
be permitted to destroy Client Files any time after 30 days from the final use
of Client Files for processing.
* Omitted pursuant to Rule 406.
(h) Miscellaneous. Client understands and agrees that Client is responsible
-------------
for the deinstallation and return shipping of any Fiserv-owned equipment located
on Client's premises.
12. Arbitration. (a) General. Except with respect to disputes arising from
----------- -------
a misappropriation or misuse of either party's proprietary rights, any dispute
or controversy arising out of this Agreement, or its interpretation, shall be
submitted to and resolved exclusively by arbitration under the rules then
prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration
shall be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 10 days
after the first party seeking arbitration has given written notice, then the
arbitration shall be heard by three arbitrators, one chosen by each party, and
the third chosen by those two arbitrators. The arbitrators will be selected
from a panel of persons having experience with and knowledge of information
technology and at least one of the arbitrators selected will be an attorney. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such hearing. Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United States
--------------
Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the substantive law
of the State of Wisconsin, without reference to provisions relating to conflict
of laws. The arbitrators shall not have the power to alter, modify, amend, add
to, or subtract from any term or provision of this Agreement, nor to rule upon
or grant any extension, renewal, or continuance of this Agreement. The
arbitrators shall have the authority to grant any legal remedy available had the
parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the
-----
parties, the proceedings to resolve the first such dispute shall be held in
Milwaukee, Wisconsin, the proceedings to resolve the second such dispute shall
be held in Los Angeles, California, and the proceedings to resolve any
subsequent disputes shall alternate between Milwaukee, Wisconsin and Los
Angeles, California.
13. Insurance. Fiserv carries the following types of insurance policies:
---------
[*]
14. Audit. Fiserv employs an internal auditor responsible for ensuring the
-----
integrity of its processing environments and internal controls. In addition,
Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the audit of the Fiserv service center providing
Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also
provide a copy of such audit to the appropriate regulatory agencies, if any,
having jurisdiction over Fiserv's provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding upon the
------- -----------------
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged, or
otherwise disposed of by Client, whether pursuant to change of control or
otherwise, without Fiserv's prior written consent. Client agrees that Fiserv
may subcontract any Services to be performed hereunder. Any such subcontractors
shall be required to comply with all applicable terms and conditions.
(b) Entire Agreement. This Agreement, including its Exhibits, which are
----------------
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control unless the Exhibit in question
expressly provides that its terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
------------
unenforceable or invalid, the other provisions shall continue in full force and
effect.
(d) Governing Law. This Agreement will be governed by the substantive laws
-------------
of the State of Wisconsin, without reference to provisions relating to conflict
of laws. The United Nations Convention of Contracts for the International Sale
of Goods shall not apply to this Agreement.
* Omitted pursuant to Rule 406.
(e) Force Majeure. Neither party shall be responsible for delays or failures
-------------
in performance resulting from acts reasonably beyond the control of that party.
(f) Notices. Any written notice required or permitted to be given hereunder
-------
shall be given by: (i) Registered or Certified Mail, Return Receipt Requested,
postage prepaid; (ii) confirmed facsimile; or (iii) nationally recognized
courier service to the other party at the addresses listed on the cover page or
to such other address or person as a party may designate in writing. All such
notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict performance
---------
of any of the provisions hereunder shall not be construed as the waiver of any
subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the appropriate
--------------------
regulatory agencies so requiring a copy of Fiserv, Inc.'s audited consolidated
financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
----------------
action brought against the other party to enforce the terms of this Agreement or
any rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys' fees of bringing such arbitration, suit, or
action.
(j) Survival. All rights and obligations of the parties under this Agreement
--------
that, by their nature, do not terminate with the expiration or termination of
this Agreement shall survive the expiration or termination of this Agreement.
(k) Exclusivity. Client agrees that Fiserv shall be the sole and exclusive
-----------
provider of the services that are the subject matter of this Agreement. For
purposes of the foregoing, the term "Client" shall include Client affiliates.
During the term of this Agreement, Client agrees not to enter into an agreement
with any other entity to provide these services (or similar services) without
Fiserv's prior written consent. If Client acquires another entity, the
exclusivity provided to Fiserv hereunder shall take effect with respect to such
acquired entity as soon as practicable after termination of such acquired
entity's previously existing arrangement for these services. If Client is
acquired by another entity, the exclusivity provided to Fiserv hereunder shall
apply with respect to the level or volume of these services provided immediately
prior to the signing of the definitive acquisition agreement relating to such
acquisition and shall continue with respect to the level or volume of these
services until any termination or expiration of this Agreement.
(l) Recruitment of Employees. Client agrees not to hire Fiserv's employees
------------------------
during the term of this Agreement and for a period of 6 months after any
termination or expiration thereof, except with Fiserv's prior written consent.
16. Price Schedule Adjustments. The prices set forth in Exhibit
--------------------------
A - 2 may, at Fiserv discretion, be subject to annual adjustments effective on
the first anniversary date of this contract as follows:
The base for computing the CPI fee adjustment is [*]. Charges for Exhibit A
SERVICES, shall be adjusted by the percentage change in CPI recorded over the
most recent twelve (12) month period for which the number is available. The
charges so calculated shall be the new charges for Exhibit A SERVICES. In no
event will the new charges for Exhibit A SERVICES be less than the charges which
existed prior to the adjustment.
Upon determination of each adjustment hereunder, the parties shall prepare a
revised Exhibit A-2 schedule of charges. The charges to Client for SERVICES for
any additional or extended Term shall be subject to increase in this manner.
================================================================================
* Omitted pursuant to Rule 406.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date indicated below.
For Client: For Fiserv:
Pacific Mercantile Bank Fiserv Solutions, Inc.
By: /s/ XXXX X. XXXXXX By: /s/ XXXXX XXXXX
---------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx XxXxx
Title: Executive Vice President, CTO Title: Executive Vice President
Date: 12/14/98 Date: 12/22/98
-------------------------------- --------------------------------
/s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
